ADA Compliance Slip Up: Major Life Activity

by on January 7, 2009 · 0 Comment POSTED IN: HR Info Center

Major Life Activity-Scope and Terminology

Your first challenge in staying ADA compliant is understanding the law’s scope and terminology. The good news is that you don’t have to be a lawyer to grasp the key definitions in the Americans with Disabilities Act. And if you master them, you’re much less likely to step on a disabled employee’s rights, fail to see who’s legally disabled and who isn’t, and greatly lower your possibility for an ADA lawsuit.

OK, so what does the law mean by “disability”? After all, employees complain of many different physical and mental ailments.

Do you have to worry about an ADA lawsuit every time somebody moans about a headache?

No, obviously not. A recognized disability under the Americans with Disabilities Act of 1990 has to be an “impairment,” and it has to be long-term. This rules out things like head colds.

Next, the impairment must meet a two-part test:
First, it must affect an employee’s ability to carry out a “major life activity,” or activities.

Second, it must “substantially limit” his or her performance of the activity or activities.

What is a “major life activity”? ADA guidelines don’t say. The courts have pinned down some activities that you can be sure of – walking, seeing, hearing, and working, for example. As for other activities, well, the situation may not always be perfectly clear.

How about thinking? Or jogging? Or shoveling snow? Here’s a case that illustrates how elusive “major life activity” can sometimes be.

What is a “disability” under the Americans with Disabilities Act?

Scenario: David McGill looked confused and lost. “I know you told me to read the new section of the operations manual, but I couldn’t,” he told supervisor Don Perkins.

“Why?” Don challenged.

“I can’t read very well,” David said. “I mean, I can recognize the words. But when I’m reading I’ll go for maybe three minutes, and then everything gets kinda jumbled up in my mind and I have to stop.”

“That’s not good news,” Don said. “We often have to communicate procedural changes and safety bulletins in writing. I can’t go around reading 10-page manuals to everybody individually.”

“I don’t know what to tell you,” David said. “I do the best I can, but it just gets mixed up on me.”

Don eventually fired David over the reading problem, as well as other behavior that David said was related to his depression and bipolar disorder.

David filed an ADA lawsuit. He claimed that reading was a “major life activity” that he couldn’t accomplish, and that he therefore was disabled.

The court agreed with him. The court said a person wouldn’t die because he or she couldn’t read. But because people often have to read to be able to care for themselves, learn and work – all of which are major life activities – reading itself is a major activity. (Head v. Glacier Northwest)

How the supervisor slipped up: Don’s vision of disability was too narrow. If David had a bum knee, or was blind in one eye, Don would have recognized a possible discrimination issue when he was deciding whether to fire David. But difficulty reading didn’t strike Don as such an issue.

Luckily for employers, not everything people regularly do in daily life is regarded as a “major life activity.” Recently, several courts have taken up the issue of whether driving is such an activity. Here’s one of these cases.

Are all disabilities “major life activities” under ADA?

Scenario: “We hired you to drive,” supervisor Barnett Pollack told Gerald LeFevre. “Now you say you can’t drive?’

“Not long distances,” Gerald said. “My doctor said with my sleep apnea, I’m likely to get drowsy if I drive more than 10 miles at a stretch. It’s not safe.”

“Well, we can’t use you if you can’t drive more than 10 miles,” Barnett said curtly. “All the delivery routes are longer than that.”

“You aren’t even going to try to work with me on this?” Gerald asked.

“Nah,” Barnett said. “This is a small company and there’s nothing else open.”

“I won’t wait for you to can me, then,” Gerald said. “I quit.”

Gerald filed an ADA lawsuit against the company, claiming that he was “constructively discharged,” or forced into resigning. He said he would have been fired if he hadn’t quit. He said the company discriminated against him because he was substantially limited in the major life activity of driving.

The court didn’t buy Gerald’s argument. First of all, the court said, Gerald could still drive shorter distances, which meant that he wasn’t “substantially limited.

More important than this, though, the court also said that driving isn’t a major life activity. It’s not on a par with such activities as seeing, hearing and working. In other words, people don’t have to drive to live.
(Reberg v. Road Equipment)

Americans with Disabilities Act Lessons Learned for Managers:
Just because people do something all the time doesn’t mean the courts – or you – have to consider it a “major life activity” for purposes of determining disability. Generally speaking, an activity that involves baseline functions like mobility, seeing, and hearing is apt to qualify. Other activities like taking out the trash, exercising, working on cars, etc., are less likely to be seen as major. If an employee complains of a condition that prevents her from doing things like these, and no more, you can pretty safely assume she wouldn’t be able to make a disability discrimination charge stick.

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